Unionizing The Electoral College

Nobody “won” the popular vote in the 2016 presidential election, if by winning we mean getting a majority of the votes cast – but someone certainly led the vote totals, and that person is not going to become the 45th president of the United States.

Hillary Clinton garnered at least 1.5 million more votes than Donald Trump, giving her about 48 percent of the total to his 47 percent, according to the unofficial Associated Press tally in the days before Thanksgiving. But it is the 538 delegates to the Electoral College who will choose the next president in a few weeks, and Trump has more than enough pledged votes – at least 290, and more likely 306, assuming Trump holds on to a slim lead in Michigan. It takes 270 electoral votes to win the presidency.

Clinton racked up huge margins in urbanized coastal states, while Trump dominated – often in very close contests – in Florida, the Rust Belt, and from the Deep South through the Rocky Mountains. This is the fifth time a popular vote winner has lost the presidency, and the first since Al Gore – like Clinton, a Democrat – came up short in 2000.

Clinton’s blue-state backers are understandably upset. Recognizing the improbability of getting a constitutional amendment passed to abolish the Electoral College (it would take a two-thirds vote in each house of Congress, followed by ratification in three-quarters of the states), they have come up with a creative and characteristically blue-state alternative: They want to form an Electoral College union.

That’s my name for it, not theirs. Officially, it would be dubbed the National Popular Vote Interstate Compact. Proponents say it would work like this: First, you get states representing at least 270 votes to sign this contract, promising to deliver all their electors to whichever candidate wins the national popular vote – regardless of how that candidate performs in their own particular state. Once that happens, voila! The popular vote leader is guaranteed to win the presidency.

This idea isn’t new; it was dreamed up in 2006 by a pair of Yale Law School professors, according to the journalism site Politifact. Thus far, 10 states plus the District of Columbia have enacted laws to join the compact, representing 165 electoral votes. All of those states, not coincidentally, favored Gore in 2000 and Clinton in 2016. So the plan’s backers are on the home stretch. They just need 105 more electoral votes to achieve their goal, or so they think. Easy, right?

Sure. Just ask Al Gore and Hillary Clinton how easy it is to assemble a coalition of states representing 270 electoral votes.

Let’s set aside, just for a moment, whether abolishing or circumventing the Electoral College would actually be a good idea. I’ll come back to that. First, let’s look at the political realities in play – beginning with the fact that Hillary Clinton was far from the only Democrat to come up short in this year’s election. In fact, Democrats have been smoked by Republicans in federal and state races nationwide in three of the four elections since President Obama took office.

When Obama moved into the White House, his party held dominant majorities in both houses of Congress. They had total control of 27 state legislatures, to 14 for Republicans, with the others either nonpartisan or divided between the parties. There were 28 Democratic governors and 22 from the GOP.

After this year’s winners take power, Republicans will have control in 32 state legislatures, while Democrats will hold just 13. Twenty-four states will have Republican governors as well as GOP-controlled legislatures, mirroring the power dynamic at the federal level; Democrats will have complete control in a mere six states. There will be at least 33 Republican governors against either 15 or 16 Democrats, depending on how North Carolina’s disputed outcome is resolved, with one independent in Alaska. Many Democrats thought this was the year their party could make gains at the state level. It didn’t work out that way.

Does this sound like a formula for getting more states to sign their Electoral College union card? Of course not.

Forget the partisan divide for now. Is Texas likely to either make common cause with, or subordinate itself to, other big states whose economic, social and tax policies are radically different, such as New York and California? Is Florida going to sacrifice its position as a pivotal swing state to enhance the voting power of people in Manhattan or Seattle? Will the former industrial strongholds of the Midwest decide they would get more attention if they let voters on the coasts choose their next president? Not to mention all those less urbanized states that see themselves as having nothing in common with people who think policies on everything from rifles to bike lanes should be decided in Brooklyn and San Francisco.

Would you want to be the politician in any of those nonsignatory states who tells local voters that they need to be more considerate of people who trade backyards for rent control? I wouldn’t.

Now let’s turn to the arguments that the Electoral College is inherently undemocratic because it violates the principle of “one person, one vote,” which it certainly does.

Haven’t we just gone through a two-decade period in which many of us made the case that inherent rights should not be subject to the whims of transient majorities? That was the argument that we made when we asserted that marriage, regardless of gender, is a fundamental civil right. It is the case for defending unpopular speech, or to protect ethnic and religious minorities. Yes, we have majority rule in this country – but always within the limits of a system of checks and balances.

We also have a federal system that reserves powers not delegated to the federal government to the states and to the people. This is why we have a Senate that gives Montana the same number of senators as California, and it also is why we have the Electoral College. The Electoral College serves the same function in the executive branch that the Senate serves in the legislative branch.

Consider: To pass a law, you need approval by both houses of Congress, meaning the House of Representatives, where big-population states dominate, and the Senate, where smaller states get a disproportionate voice. You also need a presidential signature, or a supermajority to override a veto. A president chosen solely by popular vote would be the executive equivalent of a Congress consisting only of a House of Representatives.

Remember, under the Constitution’s “supremacy clause” (Article VI), “… the Laws of the United States … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby …”

Everything that makes any state distinguishable from the major population centers, from minimum wages to right-to-work laws to renewable energy, is subject to override by federal statute. Absent the Electoral College, candidates who might be unacceptable to vast swaths of the nation could be imposed by people concentrated in small geographic areas who know little about the rest of America, and might care even less.

Maybe you think this is a fair outcome. Certainly, you have a point that Donald Trump himself is unacceptable to vast swaths of the population, even more so than Hillary Clinton, as demonstrated by the popular vote. But the Electoral College is what gives small-population states any sort of voice in the selection of their president; without it, they would likely be ignored. You can’t knit a vast nation together by unionizing one club of “ins” against another club of “outs” (sometimes referred to as “deplorables”).

It’s reasonable not to like the Electoral College, just as it is reasonable not to like the disproportionate attention that states like Iowa, New Hampshire, Nevada and South Carolina receive in the presidential primaries. But at least recognize that the system serves a purpose for all of us.

Larry M. Elkin, CPA, CFP®, has provided personal financial and tax counseling to a sophisticated client base since 1986. After six years with Arthur Andersen, where he was a senior manager for personal financial planning and family wealth planning, he founded his own firm in Hastings on Hudson, New York in 1992. That firm grew steadily and became the Palisades Hudson organization, which moved to Scarsdale, New York in 2002. The firm expanded to Fort Lauderdale, Florida, in 2005, and to Atlanta, Georgia, in 2008.

Larry received his B.A. in journalism from the University of Montana in 1978, and his M.B.A. in accounting from New York University in 1986. Larry was a reporter and editor for The Associated Press from 1978 to 1986. He covered government, business and legal affairs for the wire service, with assignments in Helena, Montana; Albany, New York; Washington, D.C.; and New York City’s federal courts in Brooklyn and Manhattan.

Larry established the organization’s investment advisory business, which now manages more than $800 million, in 1997. As president of Palisades Hudson, Larry maintains individual professional relationships with many of the firm’s clients, who reside in more than 25 states from Maine to California as well as in several foreign countries. He is the author of Financial Self-Defense for Unmarried Couples (Currency Doubleday, 1995), which was the first comprehensive financial planning guide for unmarried couples. He also is the editor and publisher of Sentinel, a quarterly newsletter on personal financial planning.

Larry has written many Sentinel articles, including several that anticipated future events. In “The Economic Case Against Tobacco Stocks” (February 1995), he forecast that litigation losses would eventually undermine cigarette manufacturers’ financial position. He concluded in “Is This the Beginning Of The End?” (May 1998) that there was a better-than-even chance that estate taxes would be repealed by 2010, three years before Congress enacted legislation to repeal the tax in 2010. In “IRS Takes A Shot At Split-Dollar Life” (June 1996), Larry predicted that the IRS would be able to treat split dollar arrangements as below-market loans, which came to pass with new rules issued by the Service in 2001 and 2002.

More recently, Larry has addressed the causes and consequences of the “Panic of 2008″ in his Sentinel articles. In “Have We Learned Our Lending Lesson At Last” (October 2007) and “Mortgage Lending Lessons Remain Unlearned” (October 2008), Larry questioned whether or not America has learned any lessons from the savings and loan crisis of the 1980s. In addition, he offered some practical changes that should have been made to amend the situation. In “Take Advantage Of The Panic Of 2008” (January 2009), Larry offered ways to capitalize on the wealth of opportunity that the panic presented.

Larry served as president of the Estate Planning Council of New York City, Inc., in 2005-2006. In 2009 the Council presented Larry with its first-ever Lifetime Achievement Award, citing his service to the organization and “his tireless efforts in promoting our industry by word and by personal example as a consummate estate planning professional.” He is regularly interviewed by national and regional publications, and has made nearly 100 radio and television appearances.